Progressive lawyers engage in judge shopping in Alabama

From what I understand, the unfortunate policy of the Judicial Conference is all but dead. What a mistake that was. Instead of focusing on areas of bipartisan agreement like patent reform and bankruptcy, the justices focused on a controversial and hot-button issue. I fear the well has now been poisoned for far-reaching reform, although I will share some thoughts in due course on how things can be improved.

For now I would like to highlight a few actual shopping judge in alabama. And none of these judge purchases occurred in single-judge divisions. You see, Alabama has very few Democratic-appointed district court judges. By my rough calculations, in the entire state there is one active Obama nominee and two senior Clinton and Carter nominees. Carter’s appointee, Judge Myron Thompson in Montgomery (Middle District of Alabama), is well known for ruling in favor of progressive litigants. Not surprisingly, if you are a progressive litigant in Alabama, you will do everything in your power to get the case assigned to Judge Thompson.

Which brings us to the present case. In 2022, Alabama enacted the Vulnerable Child Compassion and Protection Act, which bans certain medical procedures for minors. Predictably, the law was immediately challenged by all the usual suspects.

Their strategy, revealed in a panel report, is astonishing. Here’s the (approximate) timeline.

1. 04/08/2022—Ladinsky complaint filed with NDAL by National Center for Lesbian Rights, GLBTQ lawyers and legal advocates, Southern Poverty Law Center, and Human Rights Campaign.
2. 4/11/2022 — NDAL case randomly assigned to Judge Annemarie Axon (Trump appointee).
3. 4/11/2022—Walker vcomplaint filed with MDAL by ACLU, Lambda Legal, and Transgender Law Center. The civil cover sheet listed the case as related to Corbitt v. Taylor. Corbitt was a challenge to Alabama’s policy regarding listing gender on driver’s licenses. That case was closed in January 2021. The only lingering issue was legal fees. Judge Thompson presided Corbitt. The lawyers “scored Walker relating to Corbitt because they wanted to Walker assigned to Judge Thompson.” The lawyers admitted that they “considered Judge Thompson a favorable draw because of his handling of Corbitt and who ruled in favor of plaintiffs seeking transgender rights.”
4. 4/12/2022 – Walker randomly assigned to Chief Justice Emily Marks (Trump appointee). Walker the plaintiffs filed a motion for reassignment with Judge Thompson. The attorney had also called Judge Thompson’s office and spoken to the judge’s clerk to report the pending motion for preliminary injunction. At that time, Walker it had not been assigned to Judge Thompson. (The lawyer at first denied making such a call, but later admitted it; the jury found his testimony to be “troubling.”) The lawyer never called the chief judge Marks to report the pending motion.
5. 4/13/2022—Chief Judge Marks issued an order showing why the case should not be transferred to the Northern District. The parties did not object to the transfer.
6. 04/15/2022 – Walker reassigned to NDAL and the case was randomly assigned to Judge Burke (a Trump appointee). Judge Axon also moved that day Ladinsky to Judge Burke. About two hours later Ladinsky was assigned to Judge Burke, the Walker AND Ladinsky the appellants filed a notice of voluntary dismissal. Such dismissal was carried out, “even if (as [counsel] they admit) time was of the essence and their stated goal was to move quickly to impose what they considered an unconstitutional law, abruptly ending their search for emergency aid.
7. 4/16/2022—Consultant for Ladin the plaintiffs tell the press they intend to dismiss their case “immediately.”
8. 4/18/2022—Judge Burke denied that the TRO was moot due to voluntary dismissal, but noted press reports that the plaintiffs planned to refile. Judge Burke stated: “At the risk of stating the obvious, [p]The appellants’ conduct may give the impression of judge shopping – “a particularly pernicious form of forum shopping” – a practice that has the propensity to create the appearance of impropriety in the justice system.
9. 4/19/2022—A new group of claimants, led by Eknes-Tuckerfiled a lawsuit in the Middle District of Alabama signed by the same lawyers who filed it Ladinsky. The lawyers found new plaintiffs, because they were “concerned that they would be accused of Judge Shopping if they brought a new action against the same plaintiffs.” The case was randomly assigned not to Judge Thompson, but to Judge Huffaker (a Trump appointee).
10. 4/20/2022—Judge Huffaker transferred the case to Judge Burke.

The panel concluded: “Behind the scenes, the attorney took calculated furtive steps to steer the situation Walker to Judge Thompson even before filing their motion to have Walker reassigned to him.” And the lawyers “made plans and took steps in an attempt to manipulate the assignment of these cases.” Ironically, the panel noted, Judge Burke ruled for the decision Eknes-Tucker partially recurring. A Trump judge!

This sequence of events, well known in Alabama, demonstrates how pernicious it is actual judging shopping is. And this practice has Nothing dealing with single judge divisions. Experienced lawyers know how to steer cases to favorable forums. Here they made some reckless statements to the press and got caught. But in many other cases they are not caught. I’ll wait to see the breathless outrage on social media over this actual judge the shopping. If the ADF did something like that, they would be crucified.

How would the much vaunted Judicial Conference have worked here? Who knows!? There were so many assignments and reassignments, along with lawsuits filed in competing divisions, all based on random drawings. These choices were made deliberately by the appellants to clog up the system. Additionally, the cover and the “Related Case” move throw a monkey wrench into any assignment wheel. Often, clerk’s office staff must decide whether to reassign a “related” case. This case involved “two cases [that were] filed in the same district and there [was] a question of whether they should be consolidated or otherwise transferred so that the same judge presides.” Resolving this issue “is not so much a rule as a practice.” It is complex and requires some judgment. It would not surprise me if the judges in trenches looked at the Judicial Conference’s policy and recognized that it would be impossible to actually enforce it in the real world, especially in light of a potential game of chance. After all, parties can trigger reassignment simply by seeking state-level relief. It could be rejected and resubmitted , as the plaintiffs did in this case, or the same complaint can be filed in multiple districts, with the hope of obtaining the best draw.

The lawyers in the Alabama case work at major law firms and civil rights organizations. They have a vested interest in avoiding random draws in red states. For these reasons, I suspect they would silently oppose the judicial conference policy.